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The definition of illegal migration
Dzhansarayeva Rima Yerenatovna, al-Farabi Kazakh National University, Head, Chair of Criminal Law, Criminal Process and Criminalistics,
Doctor of Law, Professor E-mail: jansarayeva@mail.ru Malikova Sholpan Baltabekovna, al-Farabi Kazakh National University, associate professor Chair of Criminal Law, Criminal Process and Criminalistics, oandidate of jurisprudence
The definition of illegal migration
Abstract: The article analyzes the definitions of illegal migration. In theory, there is no consensus on the concept of illegal immigration. In the scientific revolution applied the concept of “illegal migration”, “illegal immigration”, “migration of the crime” and “criminal migration”. Crime and illegal migration, although they have common features, are different concepts. For the concept of illegal immigration is characterized by violation of migration laws. For the concept of mandatory criminal migration feature is a violation of criminal law.
Keywords: illegal migration, migration of the crime, criminal migration.
Since that time, when migration ceased to be planned and forced significantly increased its criminogenic potential, and therefore, quite natural appearance in modern scientific literature concepts such as “illegal migration”, “illegal immigration”, “crime-migration” and “criminal migration.”
Smashnikova T. B. believes “illegal immigration is a voluntary or forced displacement ofpeople across national borders for the purpose of changing their place of stay or residence, which is done with violations of the legislation in force in the territory of migration.”
Criminal Migration — a voluntary or forced displacement of people across national or administrative borders of territories for the purpose of clearly illegal stay on the territory of the host State to carry out criminal activities, entailing socially dangerous consequences, and falls under the rules of criminal law.
Illegal migration — a voluntary or forced displacement of people across national or administrative borders of territories for the purpose of changing their place of residence or domicile, deliberately committed violations of migration legislation in force in the territory of migration, and having not expressed a criminal nature
[1, 7].
Sometimes the literature, these concepts are considered as synonyms. Clarify the terminology, we can not ignore the issue of delimitation of the criminal illegal migration from migration.
In the criminological literature in recent years quite widely spread, the term “criminal migration”. It is believed that criminal migration — is operational concept adopted by criminologists to separate contingents of migrants arriving with criminal purposes and requiring increased attention from law enforcement. [2, 345]
It should also be noted that some scientists believe that the illegal migration and crime are correlated as a whole and parts. For example, Zhukov L. illegal migration is divided into two types — illegal and criminal. Under the first he understands the movement, in violation of the migration legislation, in the second — the migration to commit crimes. If we assume that the word “legally” comes from the Latin “Legalis” means soluble, recognized by the law, respectively, “illegal” has the opposite meaning.
The inclusion of criminal migration as a variety of illegal migration is not correct for the reason that in the formulation of a variety of terms, concepts, definitions should be based on a literal interpretation of the rule of law — the law does not provide a direct prohi-
bition to migrate for commit a crime (except for the organization of illegal migration).
From the standpoint of criminology the essence of the criminal nature of migration is mainly determined by subjective factors such as the desire to commit a number of crimes, or to carry out criminal activities.
One of the first developers of criminal migration problems Me-telev S. E. gave the following definition of the phenomenon: “migration of crime — a social, relatively massive, socially dangerous phenomenon, which manifests itself in the territorial displacement of persons in order to commit crimes and movement criminal technology” [3, 10].
Nechevina N. D. believes that criminal migration is a form of international voluntary migration caused by factors of a criminal nature, and is defined as the totality of movement of citizens of one state, inhabiting permanently or for a long time on the territory of another state with the purpose of illegal, illicit or criminal activities, as well as directly this activity itself and its consequences [4].
Yesayan A. K. believes that criminal migration — is the movement of people across borders of certain areas in order to commit crimes, usually in the area of economic activity that is objectively increased danger to society and greatly affects the condition of the crime situation. A variety of migration crime author calls illegal economic migration [5].
In general, criminal migration seen in the context of various phenomena: socio-economic, political, national, ethnic, demographic, and so on, which allows you to highlight the essential aspects of the processes move offender.
Thus, crime and illegal migration — are completely different concepts, although having common features, chief among of which are illegal. When it comes to illegal migration, violated, primarily norms of migration legislation, ie the established order of entry, departure, stay and transit of certain individuals in the country. Violation of the criminal law, or an attempt on their violation, the purpose of committing a crime is a mandatory feature for the concept of criminal migration. And it does not matter whether or not complied with the regulations in the field of migration control.
The concept of “criminal” and “illegal” migration, along with the differences, of course, it should be noted and their relationship. Byshevsky Y. Y. identifies two main binding element:
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— law — the two phenomena are connected with the violation of the law. Hence the whole range of negative consequences of the Institute of offenses (legal, economic, social, etc.);
— personality — a person who has violated the legal and administrative regulations, already prone to criminal behavior, and it is possible that in the future it will be able to make a dangerous act, including criminal [6].
Thus, the illegal migrant objectively It falls into a group at increased criminogenic risk. Although him more likely to commit a crime can be expected, this, however, is not enough to admit migrant criminal.
This can be done only when the moving target is installed, installed and possibly determine the degree of public danger of displacement. This aim is a crime. In her time she has Metelev S. E.
Branding M. P. and Sviridov B. C. except for the purpose of committing criminal offenses referred to migration “other travel-related criminal activity" Without a doubt, these two feature are necessary and basic attributes of criminal migration.
Thus, illegal migration is one of the forms of territorial displacement, a feature of which is that in the course of the movement or residence of migrants (foreign citizens and stateless persons) in the host State under international law and (or) domestic law relevant countries. In particular, it can be broken norms establishing the order, firstly, entry and exit from the country or group of countries, including the visa regime; Second, stay in the territory of a foreign state; Third, the procedure for employment of labor, business activity, as well as other standards.
In theory, there is no consensus on the concept of illegal immigration. Thus, illegal migration is defined as a movement of the population, which, in accordance with international law is not forced, (ie, migrants are not refugees), and contrary to the norms determined and quotas established by domestic legislation and the host country [7, 31].
Masuk V. V defines irregular migration as a form of territorial displacement of an individual over the state border in violation of the order of entry, exit and/or residence and transit, established by the legislation of the state, moving boundaries are affected, or the relevant rules of international law [8, 8].
According to Podshivalova V. E., illegal migration is one of the forms of territorial displacement, the specificity of which is that in the course of the movement or residence of migrants (foreign nationals or stateless persons) in the host State under international law and (or) the national law of the countries concerned [9, 185-191].
Totskiy N. N. gives the term “illegal migration” as “entry into the Russian Federation, stay in and departure from its territory of foreign citizens and stateless persons in violation of Russian legislation governing the entry, stay, transit and departure of foreign nationals,
and arbitrary change of its legal position during the period when the territory of Russia” [10, 36-38].
It seems that the most accurate definition of illegal migration gives Nechevina N. D. and Plyasova I. V., indicating that it is a multistep complex process, which includes entry to another country, stay in and departure from its territory of foreign citizens and stateless persons in violation of the law of the receiving State, which regulates the entry, stay, transit and departure ofthis category ofpersons and unauthorized change of its legal status during their stay in the territory of another state [11, 12].
Maharramov M. A. defines irregular migration as the “entry into a certain country, stay in its territory and exit from its territory of foreign citizens and stateless persons in violation of the legislation governing the entry, stay, transit and departure of foreign nationals” [12].
The definition of illegal (external) migration as a socio-legal phenomenon, which is an entry in a particular country, stay in its territory and exit from its territory of foreign citizens and stateless persons in violation of the legislation governing the entry, stay, transit and exit of these persons; arbitrary change of its legal status during their stay in the country, as well as the departure from the country of its citizens in violation of the legislation governing the procedure for their departure gives Predybaylo V. A. [13].
According to Barannikova M. I., illegal migration — is the arbitrary change of its legal status during their stay in its territory and the exit from the country of its citizens in violation of the legislation governing the procedure for their departure [14].
Jafarov S. A. said that illegal migration — is socially dangerous, dynamic phenomenon that threatens the national security interests of Russia and the international community as a whole. The system identifies the author of this phenomenon: 1) illegal immigration and illegal crossing of state borders of the Russian Federation; 2) the common crime of migrants; 3) to organize national-ethnic crime of migrants; 4) terrorism; 5) drug trafficking; 6) trafficking [15].
In defining illegal migration as migration, which takes place in violation of the legal norms adopted in a given state and establishing the procedure for entry, transit, stay and departure from the country of foreign citizens and stateless persons, Fedorako A. identifies several types of illegal migration:
— on the degree of organization: organized and unorganized;
— the number of transported illegal migrants: individual and group;
— according to the method of entry: effected by illegally crossing the border with forged documents through unprotected borders or outside of checkpoints across the state border and legal entry and his own recognizance after the authorized period of stay.
Along with the doctrinal definition of illegal migration takes place, and its normative definition.
References:
1. Smashnikova T. B. Administrativno-pravovoe protivodeystvie nezakonnoy migratsii v Rossiyskoy Federatsii i Respublike Belarus: sravnitelno-pravovoy analiz. - avtoref. ... diss. kand. yur. nauk. - Chelyabinsk. - 2012. - 20 s.
2. Dolgova A. I. Rossiyskaya kriminologicheskaya entsiklopediya. - M.: Infra-M. - 2000. - 808 s.
3. Metelev S. E. Kriminalnaya migratsiya: harakteristika i preduprezhdenie. - avtoref. ... diss. kand. yur. nauk. - Omsk. - 1996. - 23 s.
4. Nechevina N. D. Kriminalnaya immigratsiya kak ugroza natsionalnoy bezopasnosti Rossii//Rossiyskiy sledovatel. - 2005. # 8. - S. 52-57.
5. Esayan A. K. Obschaya harakteristika i preduprezhdenie kriminalnoy migratsii//Migratsionnoe pravo. - 2009. # 3. S 31-36.
6. Migratsiya kak kriminologicheskaya problema. Monografiya/Byishevskiy Yu.Yu. - Stavropol: Izd-vo SevKavGTU, 2007. - 258 s.
7. Scherbakov V. I. Aktualnyie voprosyi sovershenstvovaniya zakonodatelstva RF, napravlennogo na preduprezhdenie nezakonnoy migratsii//Rossiyskiy sledovatel. - 2004. # 12. S. 31-37.
8. Masyuk V. V. Organizatsionno-pravovoe obespechenie deyatelnosti FMS Rossii i ee territorialnyih organov po protivodeystviyu nezakonnoy migratsii. - avtoref. ... diss. kand. yur. nauk. - M. - 2010. - 26 s.
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On the issue of criminal responsibility for the creation, use and distribution of “botnets”
9. Podshivalov V. E. Nezakonnaya migratsiya: mezhdunarodno-pravovoy podhod//Pravovedenie. - 2002. # 4. S. 185-191.
10. Totskiy N. N. Vvedenie v migratsionnoe pravo. - M. - 1999. - 281 s.
11. Nechevina N. D., Plyasova I. V. Kriminalnaya immigratsiya v sovremennoy Rossii: kriminologicheskiy ugolovnyiy i administrativnyiy aspektyi. - M. - 2006. - 122 s.
12. Magerramov M. A. Nelegalnaya migratsiya: ponyatie, obschestvennaya opasnost, ugolovno-pravovoe i kriminologicheskoe protivodeystvie (po materialam Rossii i Azerbaydzhana). - avtoref. ... diss. kand. yur. nauk. - M., 2008. - 26 s.
13. Predyibaylo V. A. Kriminologicheskaya harakteristika i profilaktika nezakonnoy migratsii v Rossii: obschefederalnyiy i regionalnyiy aspektyi. - avtoref. ... diss. kand. yur. nauk. - M., 2012. - 22 s.
14. Barannik M. I. Kriminologicheskie i pravovyie problemyi borbyi s nezakonnoy migratsiey: [Elektron. resurs]. - 2001. URL: http://www. crime.vl.ru/index.php?p=1102&more=1&c=1&tb=1&pb=1 (data obrascheniya 03.10.2015).
15. Dzhafarov S. A. Natsionalnaya bezopasnost Rossii (aspektyi: grazhdanstvo, inostrantsyi, transnatsionalnaya nezakonnaya migratsiya)/S. A. Dzhafarov. In-t demografii, migratsii i regionalnogo razvitiya. - M.: TsTM-Press, 2007. - 599 s.
Evdokimov Konstantin Nikolaevich, Associate Professor of the Chair of State and Law Disciplines of the Irkutsk Law Institute Affiliated with the Academy of the General Prosecutor’s Office of the Russian Federation PhD in Law, Associate Professor E-mail: kons-evdokimov@yandex.ru
On the issue of criminal responsibility for the creation, use and distribution of “botnets”
Abstract: The purpose of a scientific article is to analyze the existing scientific approaches and opinions on the creation, use and distribution of malicious computer networks (botnets) and proposals for combating this criminal phenomenon.
The author proposes a new wording ofArt. 273. 1 of the Criminal Code providing for criminal responsibility for the above act, which should increase the efficiency of the Russian criminal law in the fight against computer crime.
Keywords: computer crime, cyber criminals crimes in the sphere of computer information, malicious computer software, botnet.
The use of modern information technology in the banking, commercial, industrial, scientific, educational, cultural and other spheres of public life deterministic occurrence of computer crime in the Russian Federation, as well as its quantitative and qualitative development.
In addition, recent years marked by the appearance of new forms and methods of committing computer crimes. One such criminal acts that represent the author's opinion, a significant threat to Russian society and the world community, is the creation, use and dissemination in cyberspace “botnets"
Unfortunately, in the legal literature we find a serious study of the problems mentioned, except for rare mentions of “botnet" in connection with the use of malicious computer programs. Therefore, let us turn to the opinions of technicians and experts in the field of information security.
So Kovalevsky A. I. said that “botnet — a computer network consisting of a number of hosts, with advanced bots (special program is performed automatically and/or on a predetermined schedule any action through the same interface as normal user)” [1, 35].
According Komarov A. A. and Nazarov A. N. “botnet” is a network of infected computers, ie computers, turned into robots (bot), under external control, or under the control of malicious code, embedded in the system one way or another [2, 141].
In turn, foreign literature states that “botnet” — a network of compromised hosts, managed by some malicious software (bot). Boat is an autonomous part of malicious software, which is controlled remotely. Botnets are created by infecting the computer without the knowledge or consent of the owner, for example, by sending viruses attached to emails [5, 1].
However, all researchers, without exception, agree that botnets (bot networks) are used to perform a variety of different illegal acts:
bulletproof hosting (placing pornographic, terrorist content), carrying out all the attacks of the “distributed denial of service” spyware malware, theft of confidential data, large-scale spamming “wrap” clicks [3, 89].
Based on the above, we can conclude that the “botnet” is a network of computers or other computing devices (smartphones, iPhones, aypadov et al.) Infected with special malware “bot” that enables cybercriminals to remotely control infected machines (each individually or part of a computer within the network, or across a network of computing devices entirely) without the user's knowledge, with the purpose of spamming, implementation of DDOS-attacks kibershantazha, anonymous Internet access, kibersabotazha, phishing, cyber-terrorism, and the illegal use of resources affected computers and other illegal actions.
In the Russian Federation, judicial practice in criminal cases involving crimes in the sphere of computer information, using a “botnet”, few in number, because these are high-tech crime, cross-border and latent, which complicates the possibility of their identification and disclosure. Meanwhile, convictions for such categories of criminal cases are sometimes submitted by the Russian courts.
For example, January 21, 2014 Sayan city court of the Irkutsk Region to 2 years imprisonment with probation for 1 year was sentenced c. M, committed a crime under Part. 2 tbsp. 272, h. 2, Art. 273 of the Criminal Code. In particular, M. with the help of his “botnet” employment exercised for cash consideration of DDoS-attacks on Internet resources of commercial firms. The investigation established that the accused September 27, 2012 for $ 100 made a DDoS-attack on an Internet resource «otkritie.com»; November 22, 2012 for US $ 200 on an Internet resource «4glaza. ru»; on the night of 28 to 29 November 2012 for US $ 1,000 on a
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